Allowed

Pradeep Agrawal v. Ashish Mishra

Chhattisgarh HC9 Aug 2023FA/475/2019

Case brief

AI extract

What is this about?

In an appeal against a decree for ₹13,00,000 based on a loan alleged to be secured by three un-presented cheques, the Chhattisgarh High Court set aside the judgment, holding that the trial court erred in fastening liability without proof of loan advancement and without necessary dishonour.

What did the court decide?

The impugned judgment and decree dated 9-7-2019 passed by the Sixth Additional District Judge, Bilaspur in suit No.55-B/2015 are set aside. No order as to costs.

Pradeep Agrawal Vs Ashish Mishra — Contract and Commercial Disputes | Chhattisgarh HC (2023)

FA No.475 of 2019

AFR

HIGH COURT OF CHHATTISGARH, BILASPUR

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FA No.475 of 2019

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{Arising out of judgment and decree dated 9-7-2019 passed by the Sixth Additional District Judge, Bilaspur, in civil suit No.55-B/2015}

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Pradeep Agrawal S/o Late Shri Satyanarayan Agrawal Aged About 51 Years R/o Flat No. 304, Third Floor, Mahima Vihar Bilaspur, P.S. Tarbahar, Civil And Revenue District Bilaspur, Chhattisgarh.

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---- Appellant/Defendant

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Versus

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Ashish Mishra S/o Late Shri S.N. Mishra Aged About 55 Years R/o House No.481, Ward No.41 Behind Lucky Bharat Garage, Yadav Gali Chuchuhiyapara, Shankernagar, P.S. Tarbahar, Civil And Revenue District Bilaspur, Chhattisgarh.

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---- Respondent/Plaintiff

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For Appellant Mr. Sunil Sahu, Advocate For Respondent Mr. N.K. Chatterjee, Advocate

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Hon'ble Mr. Justice Goutam Bhaduri & Hon'ble Mr. Justice Sanjay S. Agrawal

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Judgment on Board

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Per Goutam Bhaduri, J.

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09-08-2023

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Challenge in this appeal is to the judgment and decree dated 9-7-2019 passed by the Sixth Additional District Judge, Bilaspur, in civil suit No.55-B/2015 whereby a decree of ₹ 13,00,000/- has been passed against the defendant along with interest at the rate of 6% per annum.

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The plaintiff filed a suit with pleading, inter alia , that the plaintiff and the defendant were friends and because of such relation an amount of ₹ 13,00,000/- was given as loan by the plaintiff to the defendant and in

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FA No.475 of 2019

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lieu thereof three cheques were given by the defendant vide cheque No.218889 dated 8-9-2012 for ₹ 2,00,000/- (Ex.P/1); cheque No.218888 dated 30-9-2012 for ₹ 8,00,000/- (Ex.P/2); and cheque No.218957 dated 5-2-2013 for ₹ 3,00,000/- (Ex.P/3) to secure repayment. The amount since was not repaid, the plaintiff requested the defendant to make the payment, but it was not made and having enquired from the Bank, it was revealed that the defendant did not have sufficient funds in his account. Since for a considerable time the amount was not paid, eventually a civil suit was filed on the ground that he has advanced loan of ₹ 13,00,000/- to the defendant and in lieu thereof three cheques were given to the plaintiff by way of repayment to liquidate the loan. The plaintiff filed the suit claiming principal sum along with interest for recovery of such amount.

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The defendant denied all the adverse allegations in the plaint and instead it was stated that no negotiation or loan transaction took place in between the parties and frivolous complaints were made to recover the amount from the defendant and even the date of loan was not mentioned. It was stated that the suit was based on false averments and, as such, the same may be dismissed.

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The trial Court framed the issues with respect to the fact whether the loan was advanced by the plaintiff to the defendant and in lieu thereof the amount of ₹ 13,00,000/- whether was to be paid as per cheques. It was held in affirmative that the plaintiff was entitled for a decree of ₹ 13,00,000/- along with interest. Thus, this appeal.

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FA No.475 of 2019

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Learned counsel appearing for the appellant/defendant would submit that the suit was completely based on vague allegations and there is nothing on record to show that the loan was ever advanced to the defendant. He would further submit that though the suit was based on three cheques i.e. cheque No.218889 dated 8-9-2012 for ₹ 2,00,000/(Ex.P/1); cheque No.218888 dated 30-9-2012 for ₹ 8,00,000/(Ex.P/2); and cheque No.218957 dated 5-2-2013 for ₹ 3,00,000/(Ex.P/3) but they were never dishonoured. According to the learned counsel, the said cheques were not negotiated by the plaintiff to get a cause of action as the suit was based on the basis of cheques, which were alleged to be by way of repayment. He would also submit that nothing is on record to substantiate the fact that the loan was ever given to the defendant. It is stated that neither any income tax papers nor any supportive documents were placed to show the date of loan of ₹ 13,00,000/-, which was said to have been initially advanced. Therefore, the trial Court has completely misdirected itself and decreed the suit on presumption on the basis of three cheques which were in hold of the plaintiff.

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Learned counsel appearing for the respondent/plaintiff, per contra would submit that the statement of the plaintiff would categorically point out that the defendant has availed the loan and in lieu thereof for repayment of the same, three cheques were given. He would submit that on promise of the defendant, the cheques were not negotiated and the defendant who was a holder in due course held the cheque for security on a promise that the amount of loan would be re-paid, but

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FA No.475 of 2019

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eventually when the amount was not paid the suit was filed. He would submit that the conduct of the defendant by giving three cheques itself would show that he accepted the liability, therefore, the order of the Court below is well merited, which do not call for any interference.

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We have heard learned counsel appearing for the parties and perused the record.

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Primarily the suit proceeded on the ground that initially an amount of ₹ 13,00,000/- was advanced by the plaintiff to the defendant and in lieu thereof as a security three cheques were given by the defendant, which is dated 8-9-2012 for an amount of ₹ 2,00,000/- (Ex.P/1); another cheque of ₹ 8,00,000/- dated 30-9-2012 (Ex.P/2); and self cheque of ₹ 3,00,000/- dated 5-2-2012 (Ex.P/3). Perusal of the statement of the plaintiff would show that a loan for an amount of ₹ 13,00,000/- was given to the defendant and in lieu thereof the aforesaid three cheques were given by the defendant. The plaintiff stated that for a considerable period, the cheques were in his hold and the defendant having not made the repayment, the civil suit was filed.

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Admittedly, all the three cheques which were said to be negotiated for repayment of loan were not presented for payment through Bank. This fact is accepted by the plaintiff. On the contrary, the defendant in his statement has completely disowned any kind of loan transaction.

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Perusal of the record would show that there is no document on record to substantiate as to on what date the loan of ₹ 13,00,000/- was given by the plaintiff to the defendant. Apart from the fact the cheques

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FA No.475 of 2019

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which were alleged to be given as a security of the loan to secure repayment vide Ex.P/1, Ex.P/2 & Ex.P/3 would show that in the date & month column of cheques at Ex.P/1 & Ex.P/2 some over writing was made but the fact remains that the same were not routed through by any Bank to claim dishonour.

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Section 30 of the Negotiable Instruments Act, 1881 (for short ‘the Act’) creates liability of drawer of a bill of exchange or cheque and it makes the drawer bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer. For the sake of brevity Section 30 of the Act is quoted below :

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30. Liability of drawer. —The drawer of a bill of exchange or cheque is bound in case of dishonour by the drawee or acceptor thereof, to compensate the holder, provided due notice of dishonour has been given to, or received by, the drawer as hereinafter provided.

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Reading of the aforesaid Section, therefore, would show that notice of dishonour to the drawer is absolutely necessary and unless and until it is given, the holder has no cause of action against him. The said proposition is further supported by the decision of the Delhi High Court rendered in the matter of Union Bank of India v Swastika Motors and Another¹ .

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The liability of drawer of cheque, therefore, would be similar to that of the drawer of a bill; only there is no acceptance of a cheque, but payment due on presentment; if the cheque is not paid, the holder had

1 AIR 1983 Delhi 240

FA No.475 of 2019

his remedy against the drawer. But the holder has no recourse upon the drawer until the cheque has been presented and payment refused. The necessity for presentment in the case of a cheque is of greater importance than in the case of a bill as the cheque is presumed to be drawn against deposited funds. In case of dishonour the drawer should be informed of non-payment immediately so that he may enquire into the causes of refusal and secure his funds in the bank. As against the case of bill of exchange, the cheque is to be presented within a reasonable time and if payment is refused, notice of dishour should be given. Therefore, the case of cheque cannot be put at par with an ordinary bill.

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Section 31 of the Act further contemplates that the drawee of a cheque having sufficient funds of the drawer in his hands properly applicable to the payment of such cheque must pay the cheque when duly required so to do, and, in default of such payment, must compensate the drawer for any loss or damage caused by such default.

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In the case at hand, the suit proceeded completely on the presumption that the loan of ₹ 13,00,000/- was advanced without any proof thereof. The only reason that the plaintiff was holder in due course of cheque, cannot lead to construe a liability by reverse operation of facts. We would have given our thoughtful deliberation otherwise had there been any iota of evidence of advancement of loan of ₹ 13,00,000/- to the defendant. On the basis of cheques, which were in hold of plaintiff, liability cannot be fastened on defendant specially when parties to suit were engaged in business activities.

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FA No.475 of 2019

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Under the circumstances, we are of the view that the learned trial Court has completely misdirected itself to draw the presumption by transferring the burden of proof on the defendant on the basis of three cheques (Ex.P/1, Ex.P/2 & Ex.P/3) to fasten the liability of ₹ 13,00,000/- over the defendant.

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As an upshot, the appeal is allowed and the impugned judgment and decree dated 9-7-2019 passed by the Sixth Additional District Judge, Bilaspur, in civil suit No.55-B/2015 is set aside. There shall be no order as to cost(s).

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A decree be drawn accordingly.

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Sd/-	Sd/-
(Goutam Bhaduri) Judge	(Sanjay S. Agrawal) Judge

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Gowri

Pradeep Agrawal v. Ashish Mishra

Case brief

What is this about?

What did the court decide?

Pradeep Agrawal v. Ashish Mishra

Case brief

What is this about?

What did the court decide?

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